New York Times v. US The Pentagon Papers

0. 

What happened?

Leaked Viet war papers to press. Press published them. Some could’ve been confidential. Threat to national security

Who won?

New York Times

1. Key Topics - Freedom of Speech and Prior Restraint
   1. i.            The President argued that prior restraint was necessary to protect national security.
2. The Pentagon Papers were embarrassing documents created by the United States Government (the Nixon Administration) that revealed secrets (lies about civilian casualties, false events created to gain funding) about the Vietnam War.
3. NY Times (& later the Washington Post) got ahold of these papers from a gov employee.
4. US Govt sought to stop the publishing of these documents (restraining order)
5. The case played out in several courts with conflicting decisions in New York and DC regarding a permanent injunction.
6. Ruling - The only argument given in the 6-3 decision was that the government had not met their burden of proof.
   1. i.            This was a major victory for free speech advocates.
   2. ii.            The case was remarkable for the fact that 9 separate opinions were given, with four justices agreeing that burden of proof for enforcing prior restraint had not been met, but for different reasons.
      1. Black & Douglas: Views that the case should have been a dismissed. Thinks that the injunction was a clear violation of the first amendment.
      2. Brennan: Believes that the injunction was a violation of the first amendment. But not because of a hardline stance like Black and Douglas.
      3. Stewart: Believes that some of the documents would cause serious damage but joins the court’s decision.
      4. White: concurs with Stewart, says that injunction was the wrong route to go for the government, but they probably would have lost no matter what.
      5. Marshall: believes the court of congress does not have power to censor, as congress has asked them to remake a decision to make disclosure of classified documents a crime (congress originally refused to make it a crime on another case)
      6. Chief Justice Burger: Very upset that the judges did not know all the facts, says the case is really complicated but ultimately the first amendment should be adhered to.
      7. Harlan: Dissents from the opinion of the other justices. Very very upset that little care was brought into the case, is concerned about national security
      8. Blackmun: joins harlan in dissent. Substantial accord with White.

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1. Opinions:

• Confirming:

• Justice Black: First Amendment is absolute, Congress shall make NO LAW restricting the first amendment

• Justice Douglass: Congress can makes laws regarding first amendment, but there is no law to strike down. There is a difference between publication and communication.

• Justice Brennan: Don't want government to restrict the media (except in cases where there is serious immiedient danger)

• Justice Stewart: Media has the job to inform. Let congress make laws and we will decide if they are constitutional or not. There is no immediate harm from the paper publishing documents.

• Justice White: Dont want to set precedent for prior restraint.

• (Prior restraint is censorship imposed, usually by a government or institution, on expression, that prohibits particular instances of expression.)

•  Justice Marshall: Seperation of powers. Congress has not given the president power to restrict media so we cannot overturn congress

• Dissenting:

• Justice Burger: NY Times had months with documents, while we are being rushed to a decision. Push back to trial court and let NY times and government decide what can be publishes

• Justice Harland: Focused on questions that were hard to resolve such as should the NY times returned the illegally received papers. Gov not given enough time to present defense

• Justice Blackmen: Does not like haste. Article 2 gives executive branch powers. Publishing documents can cause harm to the nation

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a)     Government wants censorship to stop two newspapers New York Time and the Washington Post from publishing 7000 papers leaked from pentagon.

b)    This case was brought up during the Vietnam War.

c)     Trying to censor the press is the violation of 1^st Amendment and is unconstitutional.

d)    The government was unable to provide evidence that leaked documents contains information pertaining to national security such as location or movement of troops. Government initially claimed that paper contains decision making of the Vietnam War. But there was no evidence.

e)     Unusual: Government wants to issue prior restraint on the press to stop publication of papers. The case moved at very fast pace and there was no time for court to review all 7000 pages of documents.

f)     Since there was large number of documents, the press already started to publish them as weekly articles.

g)    There was no hint in the case that press obtained those documents illegally.

h)    There were a lot of dissenting opinions because no one was agreeing to the decision. Every judge was having different idea on what they found.

i)      Since there was not enough time and disagreement, no decision was made on issuing prior restraint on press.

j)      The important concern was censorship of press which was never done before by any court.

k)    This case was based on no law therefore it was difficult for court to decide anything.

l)      Judges had different dissent opinion but none of them favored censorship on the press.

m)   We can conclude that free speech is very important and protected by 1^st amendment of our constitution. Decision against free speech needs strong grounds. Challenging and wining against free speech is not easy.

n)    Prior restraint is bad because 1^st amendment prohibits it.

• o)    Judges Opinion:

i)      Justice Black(concurring): We should decide to dismiss this case because free and independent press is protected under the 1^st amendment. The government is saying publishing this papers will threat national security but no evidence is given that how really the papers will affect the security. Government is saying no law doesn’t mean no law. But I disagree because congress should not make any law. (违宪，  国会无权立法)

ii)    Justice Douglas(concurring): He wants to support justice blacks’ opinion because he want us to know to be the supporter of the first amendment but he don’t want to go as far as Justice Black. Not only prior restraint on the press is bad but government is asking us to take their word for granted with no bases on any law. If we did put any restraints on the press where should it come from? There is no law restraining the press passed by congress. There is also difference between communicating and publishing in Espionage act. Publication doesn’t mean that everybody read it but when you communicate someone hears it. Therefore, government should not tell us what court’s decision should be.（没有法律先例，  出版和交流应该区别对待）

iii)  Justice Brennan(concurring): There has never been a temporary stay on press in past. There is not a lot of time to review the documents. I disagree with the prior restraint on press for publishing these documents as congress in not able to prove if there is any direct threat to nations (clear and present danger). It doesn’t seems that papers give any war strategies or provide threat to safety of troops in the sea. Therefore, the allegations of the government cannot be basis of injunction on press. （时间不足， 国会未提供足够证据）

iv)   Justice Stewart(concurring): He talks about the criminal aspects. This is balance of power issue. This is not our territory. This should someone else doing like congress should write a law about this. Congress didn’t write any law about this so it is none of our business. If congress had a law that paper can’t do this then newspapers could have brought it to us and asked us if the law is constitutional or not. If we did put any restraints on the press where should it come from? So prior restraint is bad. Government has not shown any clear and present danger due the papers leaked. （国会尚未立法， 缺失法律依据）

v)    Justice White(concurring): I am convinced that some of the papers leaked may have some national threats but prior restraints is not the way to deal with the things unless it shows that there is a harm occurred. If papers does something criminal it will be based on criminal statues and they are going down. He was angry on newspapers because they started publishing the documents. But prior restraint are even higher than criminal laws. （存在危害的可能性， 但国会尚未立法）

vi)   Justice Marshall (concurring) : He said I agree with Justice Stewart and Justice White that congress has no law to base this case. But I disagree that congress has not tried to make a law. I think congress had spoken. The congress has tried to make a law twice to deal with such situation but bill was rejected both times. Because that would gave government to have that power. Congress failed to make this action as a crime, so it is asking court to make it as a crime act but court doesn’t have power to do so. （国会立法被否决， 法院无权管辖）

vii) The chief Justice Burger (dissenting) : He says that this is not court’s job to decide which law to apply. The government should talk with press and reach an agreement. If there is something on paper that they don’t agree upon, then they should bring it to court with specific issues. Then the court will decide. Court doesn’t have time to go through whole documents and then make a decision. Don’t include the Supreme Court in everything.（时间不足，政府应与媒体达成协议， 由此可收法院管辖）

viii)        Justice Harlan (Dissenting):  He was not worried about the technicality of this case. He want to figure out the list of issues that goes way beyond the technicality of this case. He had 7 list of questions. His decision turned on the basis of these question should be answered. He was kind of academic.

（集中在一些难以解决的问题上，比如《纽约时报》是否应该归还非法收到的报纸。政府没有给予足够的时间进行辩护等）

ix)   Justice Blackman (dissenting): He said great cases makes bad laws. We don’t have enough information to make a decision. There are 7000 documents to go through. This case should be sent back to circuit court to figure out which document should be published. （信息不足，案件应送回地方法院）

x)    EVERY JUDGE was supporter of 1^st amendment and against prior restraints.

2)    Why is it important to read the dissenting views in a case? How is the Pentagon Papers a particularly good example of this?  (Hint: what information is provided in the dissent that is not included in the majority opinion?) 

a)     It is very important to read a dissent opinion to understand the other side of the story. The majority decision is final decision but some judges describes reason about why they disagree.

b)    Pentagon paper have plurality that is judges were not able to reach a majority. Therefore, there were 10 opinions from 9 Supreme Court judges.

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Key points:

New York Times tried to publish classified documents.

　　- New York was publishing information from vietnam invasion that wansn't supposed to be on public eyes.

Injuction -  Making somebody NOT do something

Emergency Injuction - Urgent stopping somebody from doing something 

If granted - 1 to 3 weeks to give time for a preliminary hearing 　

　 

Prior Restraint - Restraining someone from saying or printing something before they actually do it.

　　You can't punish someone for something they haven't done yet

　　Censorship... 

　　Very difficult to win a case involving Prior Restraing to stop the information from coming out  

Is there enough evidence for Prior Restraint?

1. Prior restraint - - Restraining speech before it occurs
2. Standard? Suppression of material that would be published or broadcast, on the grounds that it is libelous or harmful. In US law, the First Amendment severely limits the ability of the government to do this
3. Typically, prior restraint can be imposed if the country is in times of war and the action threatens national security or the Government's possessory interest
4. If a website was posting information that threatens national security, then the government would have to wait until after the posting to take lawful action as opposed to prior restraint
5. Prior restraint is exemplified by the Pentagon Papers case.